CHAPTER ONE What is tort? SUMMARY The law of tort provides remedies in a wide variety of situations. Overall it has a rather tangled appearance. But there is some underlying order. This chapter tries to explain some of that order. It also reviews the main functions of the law of tort. These include deterring unsafe behaviour, giving a just response to wrongdoing, and spreading the cost of accidents broadly. The chapter then introduces two major institutions within the law of tort: the tort of negligence and the role played by statute law. Tort: Part of the law of civil wrongs 1.1 Where P sues D for a tort, P is complaining of a wrong suffered at D’s hands. The remedy P is claiming is usually a money payment. So proceedings in tort are different from criminal proceedings: in a criminal court, typically, it is not the victim of the wrong who starts the proceedings, but some official prosecutor. The remedy will also be different. A criminal court may decide that D should pay a sum of money, but if it does, the money will usually be forfeited to the state, rather than to P. (For this reason, some say that tort is about compensating P, whereas the criminal law is about punishing D. But as you will see, this begs various questions about what ‘punishment’ means; I will soon return to this issue.) This is the most basic defining feature of tort. It is a civil, not a criminal, action. The claim is pursued in a civil court, and civil procedure is very different from criminal procedure. The initiative in beginning the action, and many decisions as to the conduct of the action, lie with P; whereas in criminal proceedings, P’s role is at most that of a mere witness. (It is not quite that simple. Criminal courts can sometimes award compensation to the victims of crime – about 100,000 compensation orders are made in any one year. And in theory, though only very rarely in practice, the victim of a crime may 1 Style 3 (Royal).p65 1 1/10/2003, 8:11 PM → WHAT IS TORT? ← prosecute, rather than leaving it up to officials. But as a broad picture this is substantially accurate. Very often, civil and criminal proceedings are taken over the same wrong.) Tort is not the whole of the law of civil wrongs 1.2 The remedies available in tort are only part of the large array of remedies available in different situations. Tort represents a diverse and (at first sight) almost random selection of this wider whole. P’s complaint may be that D injured P’s reputation (‘defamation’: 8.1). Or P may be complaining about trespass to P’s land (7.2), or interference with P’s enjoyment of it (‘nuisance’: 7.5). A variety of careless behaviour threatening P’s interests is caught by the tort of ‘negligence’ (1.26). And D may be liable for some source of danger over which D has, or ought to have, some control, such as D’s animals (7.44). Or D may be held responsible for the acts of others, particularly D’s own employees (9.2). Tort is, then, a radically miscellaneous subject. Can we impose some sort of order on this jumble? Q. Are there common themes running through all the various torts? A. Yes, and they are sufficiently coherent to give an overall picture of the way tort works. But these themes cannot be pushed too far, and certainly cannot be used to resolve problems in concrete situations. A whole view of tort Types of misconduct 1.3 In all tort cases, P is making some sort of complaint about misconduct, either D’s misconduct or misconduct for which D is responsible in law. But the type of misconduct varies. In some situations, D must have had an intention to harm P before liability can be established. In others, it is enough if D was negligent (roughly, careless). In others still, D is subject to strict liability, which means that the criterion for liability is harsher than negligence. (Some writers use ‘strict liability’ to mean that the standard by which D is judged is harsher than ‘negligence’ but still recognisably a fault criterion, and ‘absolute liability’ to refer to standards which have nothing to do with fault. But this distinction is very hard to apply in practice.) So there is a range of different types of wrongdoing, and which type is relevant must depend on the context. However, it is also important to remember that these various types of fault represent a smooth continuum, rather than entirely separate entities. • ‘Intention’ is defined differently in different contexts. So a mugger who injures his victims certainly ‘intends’ harm, for the purposes of the tort of battery (2.1). But it is more difficult to say whether an entrepreneur who sets out to ruin a competitor ‘intends’ harm to that competitor for the purposes of the economic torts – even though the loss is equally deliberate (6.18). 2 Style 3 (Royal).p65 2 1/10/2003, 8:11 PM → A whole view of tort ← • The courts sometimes talk of a requirement of ‘malice’ in relation to some torts. This sometimes means ‘intent to harm’, but sometimes something narrower (such as personal spite against the victim), and sometimes something broader (see 8.30). In legal contexts, it is wise never to use the word ‘malice’ unless you can say precisely what you mean by the expression. • ‘Negligence’ is a useful word, and means (roughly) that D has been clumsy in such a way as to threaten P’s legitimate interests. But it is a word to be used carefully, for it runs together two different questions: (i) whether D needs to look out for P’s interests at all and, (ii) if so, how careful D must be. The first question is often rephrased as asking whether D owes P a duty of care, and the second as to the standard of care required (1.36). It often happens that D owes a similar duty to P1 and P2, but that the standard is quite different. For example, if D conducts dangerous activities on his or her premises and injures P as a result, the level of duty depends on whether P was on the premises or off and, if on, whether P was a trespasser or a lawful visitor (4.15). • ‘Strict liability’ can arise in a variety of circumstances, each with their own peculiarities. It is, however, very rare indeed to find an example of strict liability which has no element of ‘negligence’ in it somewhere. For example, liability for defective products is in theory strict, but a manufacturer is often able to escape liability by proving that all due care was taken (4.11). This classification by type of wrongdoing has its uses, particularly in emphasising the range of different types of conduct with which we are concerned. But in itself it only begins to unlock the secrets of the area. TYPES OF INJURY 1.4 Can we get any further by asking about the injury to P? The injury can take many forms: injury to, or interference with, P’s property or P’s body; injury to P’s economic interests; or injury to P’s reputation. This is a useful approach, though following it through brings to the fore the patchwork nature of tort, and how little some parts of it have in common with others: • Interests in land are well protected by the law of tort, whether against – deliberate intrusions (‘trespass’: 7.2), – careless damage (‘negligence’: 5.1) or – interference with P’s right to enjoy the land (‘nuisance’: 7.11). The law of real property is of course a distinct subject in itself, and very often it is purely arbitrary which doctrines are treated as part of tort, and which as part of property. • Interests in other forms of property are protected up to a point by the law of tort. So deliberate taking of tangible property is caught by the tort of ‘conversion’, and careless damage by the tort of negligence (5.1). But the law of tort has far more to say on some forms of property than others. It has next to nothing to say on (for example) shares or financial assets. This makes little twenty-first century sense, given the importance of these financial assets; the reasons are historical. 3 Style 3 (Royal).p65 3 1/10/2003, 8:11 PM → WHAT IS TORT? ← • P’s interest in his or her own bodily integrity is well protected by the law of tort, and accounts for the overwhelming majority of actions actually brought. P is protected from deliberate injury by the torts of assault and battery (2.1), from careless injury by the tort of negligence (3.1), and from many other dangers by the tort of breach of statutory duty (1.46). But the system of liability in tort makes little sense on its own. It can only be properly assessed in the context of health and safety law, pensions and social security law, and the various ways in which tort liability in this area has been encouraged. The explosion of liability in this area, so surprising in historical terms, was no accident, but a deliberate object of official policy (3.14). Bodily injury is usually painful, and damage for the injury almost invariably includes a sum for pain and suffering (10.58). To that extent, ‘distress’ is not obviously separable from ‘bodily injury’.